June 3, 2011
Lack Of Support
An attorney has been indefinitely suspended by the Kansas Supreme Court for failure to pay court-ordered child support. After he fell over $60,000 in arrears, he was ordered to pay slightly over $1,000 per month. When he did not pay as ordered, he failed to attend a show cause hearing. As a result, he was jailed for contempt. He missed court proceedings in unrelated matters because of his incarceration.
The attorney had served as Jefferson County Attorney and had a record of prior discipline. (Mike Frisch)
Attorney's Testimony Against Removed Judge Requires Recusal Of Colleague
A district court judge's admitted bias against a party's attorney required recusal and reversal of the judge's rulings, according to a decision issued today by the Nebraska Supreme Court. The attorney represents the party in a land dispute.
The attorney had testified against a colleague of the judge in judicial discipline proceedings. The accusations involved the coach of the softball team of the colleague's daughter. The colleague (Judge Florom) was later removed from office. Our earlier coverage is linked here.
Here, the court did not address whether the judge's decision was correct; rather, the court concluded that the bias had tainted the process:
We have explained that a trial judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even if no actual bias or prejudice is shown. By [the judge's] own admission, the so-called Florom fiasco caused him to have a personal bias against the [client's] attorney. While [the judge] did not announce his bias until after Florio was removed from judicial office, a reasonable observor would conclude that this same bias was present when [the judge] decided the parties cross-motions for summary judgment.
The court found that it was "unlikely that [the judge] was ignorant of the ongoing disciplinary proceedings against a colleague."
AllGov had this description of the Florom fiasco:
Judge Kent E. Florom of Nebraska was kicked off the state’s 11th Judicial District bench by the state Supreme Court because he abused his position to help his daughter’s softball team. Florom, who served as a judge for 19 years, accepted the position of assistant coach for the team. When the coach, Sharon Kramer, was accused of stealing from the local high school booster club, Florom spoke with the county attorney, Rebecca Harling, about the possibility of Kramer paying restitution rather than being charged with a crime so that she would not miss any softball games.
The alleged bias was against the school board member. (Mike Frisch)
Probation Rather Than Suspension
The Nebraska Supreme Court imposed probation of two years in a matter involving failure to pay State Farm for its subrogation interest in the proceeds of a personal injury settlement. The court rejected the claim by disciplinary counsel that the sanction was unduly lenient.
The distribution of settlement proceeds took place in February 2008. The attorney testified that he wrote the check to State Farm. He learned from State Farm that they had not been paid, but "was erroneously told [by the bank] that the check had cleared. [He] took not further action concerning [the] matter."
State Farm complained to the Bar and eventually was paid.
The attorney admitted that he did not hold sufficient funds in escrow to pay the amount owed. He explained that he was experiencing health issues and "wasn't thinking clearly" after his fiance died. He conceded that he had "dropped the ball."
If the attorney commits further rule violations, "he would be subject to suspension or disbarment." (Mike Frisch)
Crimes Lead To Disbarment
The New York Appellate Division for the First Judicial Department has determined that an attorney's criminal conviction warrants disbarment.
The court described the misconduct:
During his plea allocution, respondent admitted that he committed grand larceny in the second degree and offered a false instrument for filing in the first degree when, from 1996 through 2008, he failed to pay withholding taxes in relation to his law firm employees which amounted to approximately $90,000 (with penalties and interest it amounted to $200,000) and, he knowingly and falsely understated his tax liability on his 2006 New York State personal income tax return. Respondent further admitted that, as counsel for the seller in a real estate transaction, he deposited into his escrow account a down payment check in the amount of $735,000 and, thereafter, used those funds for personal obligations so that on or about May 2, 2008, the day of the closing, said funds were not turned over. Thus, respondent conceded that by stealing the $735,000, he committed grand larceny in the third degree and knowingly possessed stolen property in the third degree. On November 17, 2010, respondent executed an affidavit of confession of judgment in the amount of $735,000, and was scheduled to enter into an order of restitution.
June 2, 2011
Plagiarism Finding Sustained
A determination that a Binghamton University student had plagiarized a term paper for a history course was affirmed by the New York Appellate Division for the Third Judicial Department.
The accused student had submitted a "polished draft" of the paper that made the professor skeptical about the integrity of the submission. Although the source was never identified, the court found that the finding of plagiarism "was supported by a rational basis."
The student had produced the paper without settling on a topic less than three weeks prior to producing the draft and was "totally unprepared" to discuss the paper: "[t]he belief that [the student] was guilty of plagiarism was reinforced by his apparent inability to intelligently discuss many of the issues generated by these historical events, even though he had just completed the paper and finished his research."
The court also rejected claims that the school violated the student's due process rights. (Mike Frisch)
Immediate Threat Of Substantial And Irreparable Harm
The Oklahoma Supreme Court has suspended an attorney pending disposition of the following charges:
The complaint alleges: (1) Respondent fraudulently manufactured a Court order specifically for the purpose of misappropriating the funds of an injured minor child; (2) Respondent diverted said funds to his own personal use; (3) Respondent gave conflicting statements to third parties in an attempt to cover his misappropriation of said funds; and (4) Respondent offered an inducement to a third party to keep his improper conduct acts from becoming known to law enforcement authorities and/or the Oklahoma Bar Association. Complainant asserts that Respondent's conduct poses an immediate threat of substantial and irreparable public harm requiring his immediate suspension from the practice of law pursuant to Rule 6.2 of the RGDP. Additionally, Complainant seeks an Order to Respondent to immediately remove himself as a signor on all firm trust accounts or any bank account being held on behalf of a minor child and/or an adult. Respondent has answered and denies the misconduct and opposes an interim suspension.
Partners As Judge And City Attorney
From the South Carolina Judicial Ethics Advisory Committee:
OPINION NO. 5- 2011
RE: Propriety of an attorney serving as part-time municipal court judge when attorney’s law partner serves as the city attorney.
An attorney has recently been appointed as a part-time municipal judge. The attorney/judge’s law partner serves as the city attorney. The judge has recently read Bar Ethics Op. No. 1994-02, which indicated service in this situation may not be proper. However, the judge’s situations differs in some respects from the situation in Ethics Op. No. 1994-02,and thus, the judge requests an opinion from this Committee. The judge will not act in the capacity of municipal judge until an opinion is rendered on the propriety of such service.
The judge’s law partner is the city attorney. The city attorney attends city council meetings, reviews and drafts legal documents, contracts and deeds, and advises city council and the city administrator. The city attorney does not advise the police or departmental employees on matters that may come before the municipal court. The city attorney also does not advise the City regarding ordinances that come before the municipal court, as those cases are handled by the city solicitor.
The part-time municipal judge should not serve where the judge’s law partner is the city attorney.
South Carolina Bar Ethics Opinion 1994-02 found that a part-time judge could not also serve as a part-time city attorney; that Opinion also found that a member of a part-time city judge’s law firm should not serve as the part-time city attorney, even in the part-time city attorney did not prosecute matters in city court. That Opinion found that Canon 2, which directs a judge to promote confidence in the judiciary’s integrity and impartiality, would prevent a part-time judge from serving while the judge simultaneously had an attorney-client relationship with the city. The Opinion also concluded that the part-time judge’s disqualifications would be imputed to his law partners under Rule 1.10 of the Code of Professional Conduct. That Opinion did note that Rule 1.10 did not specifically address disqualification in the context of a part-time judge.
While this Committee has also concluded that a part-time municipal judge cannot also serve as a part-time city attorney (in the same municipality), we have not addressed the issue presented here and considered in Bar Ethics Opinion 1994-02. Opinion 1994-02 placed great weight on the responsibilities of a city attorney, noting that:
...the actual responsibilities of the city attorney require scrutiny. For example, the limited jurisdiction of the municipal court includes trying “all cases arising under the ordinances of the municipality.” S.C.C. 14-25-45. City attorney duties may include drafting these ordinances or advising on policies in reference to their enforcement; the city judge must then rule on the same ordinances from the bench. The weight of these ethical considerations preclude holding both positions on a part-time basis.
The judge here states that the part-time city attorney does not advise the police or departmental employees on matters that may come before the municipal court, nor does the city attorney does advise the City regarding ordinances that come before the municipal court. However, the judge does state that the city attorney drafts legal documents, contracts and deeds, and advises city council and the city administrator. Some of the legal documents drafted by the city attorney could then be the subject of matters that come before the municipal judge. Because the judge and the city attorney are law partners, this would create the appearance of impropriety and could cause the public to question the impartiality of the judiciary. Thus, the part-time judge should not serve under these circumstances.
June 1, 2011
If It's Broke, Don't Litigate It
The Indiana Supreme Court ordered that a suspended attorney pay a $500 fine for practicing law in contempt of the suspension order.
The suspended attorney had a friend. The friend had a window broken in her home by two youths (or "Yutes" if you are a fan of My Cousin Vinny):
Vinny: Is it possible that the two youts--
Judge Haller: Uh, the two what? Uh, uh, what was that word?
Vinny: Uh, what word?
Judge Haller: Two what?
Judge Haller: Did you say "yutes"?
Vinny: Yeah, two youts.
Judge Haller: What is a yute?
Vinny: Oh, excuse me, Your Honor, two youths.
His unauthorized practice involved his efforts on behalf of the friend: "Even if [he] did not explicitly state that he was acting as his friend's attorney, this was the clear message that his actions conveyed." (Mike Frisch)
Failed Unauthorized Communication Attempt Gets Nothing But Censure
An attorney has been censured by the Wyoming Supreme Court for the following:
On two occasions, Respondent attempted to utilize a third person to communicate information to and/or obtain information from a person who was represented by counsel in a child custody matter in which Respondent represented the father. The attempted contact was unsuccssful, and Respondent obtained no information thereby.
The attorney has been reprimanded in 2002. (Mike Frisch)
Putting The Home In Oklahoma
The Oklahoma Supreme Court has reinstated an attorney, finding that her handling of social security matters did not involve the unauthorized practice of law.
...Petitioner testified she moved to Alabama with her husband in June 2004 to be close to their families. She also relayed that prior to the move, she had recently had a baby. Petitioner stated that she thought the move to Alabama was permanent, so did not continue to pay her OBA dues or complete Oklahoma CLE. This resulted in Petitioner being administratively suspended for non-payment of dues and non-compliance of mandatory CLE requirements, and stricken from the roll of Oklahoma attorneys on September 11, 2006.
Petitioner further testified that she returned to Oklahoma in October 2007, because she and her husband decided that it was the best place to rear their four-year-old daughter and for her to attend school. Petitioner was initially employed in Oklahoma by West Publishing as an editor. In January 2010, Petitioner began working for a Tulsa law firm handling Social Security Disability claims before the Social Security Administration. She has stated that the reinstatement of her license would allow her to represent clients through the appeals process in the courts.
The court agreed with the parties that there was no unauthorized practice:
Petitioner, through her attorney, and Assistant General Counsel for the OBA, filed a joint Memorandum of Law on October 6, 2010, asserting that...representation of bankrupts [by a petitioner whose reinstatement was denied] was distinguishable from Petitioner representing claimants before Social Security tribunals. The Joint Memorandum pointed out that pursuant to 20 C.F.R. § 416.1505(b), nonlawyers can represent claimants before the Social Security Adminstration, but that Petitioner also maintained an Alabama license to practice law. It further relayed that Petitioner has been under the supervision of an Oklahoma licensed attorney during all times with regard to her Social Security Disability work. The joint memorandum further asserted that there was no Oklahoma state law component to federal disability claims and that Petitioner's representation before the Social Security Administration did not constitute the unauthorized practice of law in Oklahoma.
A Single Matter
If you teach Professional Responsibility (or whatever your law school calls such a course) and wish to underscore how a single matter can virtually destroy a career, this recent three-year consent suspension imposed by the Pennsylvania Supreme Court might be of some interest.
The attorney was admitted in 2001. The misconduct was in connection with the appeal of denied worker's compensation benefits. The attorney was paid $15,000 in advanced fees and dissipated the fees over a period of years without earning what he paid himself. He then avoided the client for years.
He was able to avoid disbarment by being remorseful and cooperating with the bar prosecution. He had no discipline other than the one case. (Mike Frisch)
May 31, 2011
An Illinois Hearing Board has recommended disbarment of an attorney for misconduct in the representation of her own mother:
In or prior to 2006, Lenore [Respondent's mother]allowed Respondent to reside in a home Lenore owned at 1530 Tower Road in Winnetka under the terms that Respondent would pay rent and other expenses normally paid by tenants and Lenore would pay expenses normally paid by landlords. At the time Respondent resided at the Winnetka house, Lenore was residing in La Jolla, California.
In or about 2006, Respondent told Lenore she was suffering from cancer and needed a place to live near her cancer treatment center in Evanston. Respondent's statements to Lenore were false and Respondent knew they were false because she never had cancer. Respondent's statements were made for the purpose of inducing Lenore to purchase a house in Evanston to be used for Respondent's benefit...
In or about 2006, in reliance upon Respondent's statements, Lenore decided to sell the Winnetka house and use some of the proceeds from the sale to purchase a smaller house in Evanston where she would allow Respondent to reside as a tenant under terms similar to that for the Winnetka house. Respondent acted as Lenore's attorney for the sale of the Winnetka house and the purchase of the Evanston house.
By reason of the trust and confidence that Lenore placed in Respondent pursuant to the attorney-client relationship, Respondent stood in a position of a fiduciary to Lenore. As such, Respondent owed Lenore the fiduciary duties attendant to the attorney-client relationship, including the duty to perform the requested services with the highest degree of honesty, fidelity, and good faith, a duty of undivided loyalty, a duty to avoid placing herself in a position where her interests would conflict with the interests of her client, and a duty of care, including but not limited to a duty to ascertain if the actions she was taking on behalf of Lenore accurately reflected Lenore's desires and protected Lenore's legal interests.
The transaction thereafter was marked by concealment and self-dealing. As to sanction:
Although Respondent was not charged with conversion in this case, her unauthorized and intentional actions did result in an eventual reduction of the value of her mother’s estate. We therefore derive additional guidance from cases involving attorneys who converted funds from estates...
Respondent’s actions were reprehensible. While purporting to represent her mother’s interests, she was actually scheming to benefit herself. She betrayed close family members who trusted her, and caused them to suffer financial harm. When contacted by the Administrator regarding her actions, she failed to explain her conduct or respond to requests for information.
The attorney defaulted on the bar charges.
The mother was an artist who passed away in 2009. From the Chicago Tribune obituary:
[The mother's] art career blossomed in the 1970's. She served as the Artist-In-Residence in Jerusalem, Israel in 1973 and 1974, and as a Juror with the Chicago Art Institute in the 1980's. She also taught for several years at the North Shore Art League in Winnetka, IL, was an active member of numerous artists' organizations, including the Arts Club of Chicago, the Chicago Society of Artists, the Evanston Art Center, the Printer's Atelier West of San Diego, and the Chicago Artist's Coalition, and was elected to membership in the Cliff Dwellers' Club of Chicago.
Application For Appointed Counsel Is Privileged
The New Jersey Appellate Division has held that a defendant's application for appointed counsel and the "factual materials submitted in support of that application are protected b y the attorney-client privilege. The privilege may properly be invoked where the materials "may contain information the State could use against [the defendant] in the prosecution of the charges for which he sought representation..."
The defendant was one of 34 persons indicted for racketeering. The court indicated that it might consider enforcing a more narrowly-drawn subpoena. (Mike Frisch)
Bad Judgment Followed By Appropriate Response
A superior court judge who was arrested for DUI and convicted of reckless driving has been reprimanded by the Indiana Supreme Court.
He did the right things after he was pulled over by never mentioning his judicial status and by advising the judicial authorities of his arrest on the following day. (Mike Frisch)
Inappropriate Comment And Image Gets Magistrate Reprimanded
The South Carolina Supreme Court has reprimanded a magistrate for the following:
Respondent attended an Horry County Bar reception in Myrtle Beach, South Carolina. At the reception, respondent made an inappropriate comment to a law student attending the reception. In addition, respondent had a cell phone at the reception which contained an inappropriate image that was viewed by the law student and others attending the reception. Respondent regrets his conduct.
On August 2, 2010, the Court placed respondent on interim suspension as a result of his conduct at the reception. Respondent has since retired from his judicial position.
The discipline was imposed by consent. (Mike Frisch)
Hands Off Indiana
The Indiana Supreme Court has imposed an agreed sanction of an Arizona attorney who had radio advertising for accident cases aired in Indiana. At least two Indianans responded to the ad. the ad falsely suggested he had a national law firm that specializes in accident cases when his sole office is in Phoenix and he has no certified specialty.
The sanction indefinitely bars him from seeking Indiana clients or engaging in unauthorized Indiana practice. (Mike Frisch)
One Reprimand Or Another
The Georgia Supreme Court has imposed a review panel reprimand in a matter in which an attorney had issued an opinion letter averring that he knew nothing that could materially affect a transaction in which his LLC client sought financing to purchase a second corporation. At the time, the attorney represented the director and officer of ther LLC's sole member in connection with federal criminal charges.
The attorney admitted lack of competence in the matter. He was remorseful, had no prior discipline or dishonest motive. the conduct was deemed negligent.
Three justices dissented and would impose the lesser discipline of investigative panel reprimand. (Mike Frisch)